With that being said, I’ve heard client’s tell me that other attorneys have told them that their third possession of cocaine is their “third strike.” What the attorney is (or should be) really saying is that it is their “third drug offense.” Such will very likely have implications regarding the sentence they might receive on their drug case, but has absolutely nothing to do with section 17-25-45.
I will attempt in this article, to break down the statute and give some explanation as to the working parts. Keep in mind however, that there is no substitute for one-on-one legal advice and there are certain provisions and judicial interpretations that are not addressed in this article. If you are charged with an offense that is considered “serious” or “most serious” apply for the public defender or hire an experienced criminal defense attorney in South Carolina.
Text of Statute
Section 17-25-45, states as follows.
(A) Notwithstanding any other provision of law, except in cases in which the death penalty is imposed, upon a conviction for a most serious offense as defined by this section, a person must be sentenced to a term of imprisonment for life without the possibility of parole if that person has either:
(1) one or more prior convictions for:
(a) a most serious offense; or
(b) a federal or out-of-state conviction for an offense that would be classified as a most serious offense under this section; or
(2) two or more prior convictions for:
(a) a serious offense; or
(b) a federal or out-of-state conviction for an offense that would be classified as a serious offense under this section.
(B) Notwithstanding any other provision of law, except in cases in which the death penalty is imposed, upon a conviction for a serious offense as defined by this section, a person must be sentenced to a term of imprisonment for life without the possibility of parole if that person has two or more prior convictions for:
(1) a serious offense;
(2) a most serious offense;
(3) a federal or out-of-state offense that would be classified as a serious offense or most serious offense under this section; or
(4) any combination of the offenses listed in items (1), (2), and (3) above.
The (More) Simplified Version
To break the statute down in simpler terms, the “two strikes” (Subsection (A)(1)) law says that upon conviction for a second “most serious” offense, an offender can be sentenced to life in prison without possibility of parole. For example, the offense of armed robbery carries up to 30 years in prison. Upon conviction of a second armed robbery, the sentence would not be up to 30 years, but rather would be life in prison without the possibility of parole.
Most Serious Offenses
“Most serious” offenses are defined in section (C)(1).
16-1-40 Accessory, for any offense enumerated in this item
16-1-80 Attempt, for any offense enumerated in this item
16-3-29 Attempted Murder
16-3-50 Voluntary manslaughter
16-3-85(A)(1) Homicide by child abuse
16-3-85(A)(2) Aiding and abetting homicide by child abuse
16-3-210 Lynching, First degree
16-3-210(B) Assault and battery by mob, First degree
16-3-620 Assault and battery with intent to kill
16-3-652 Criminal sexual conduct, First degree
16-3-653 Criminal sexual conduct, Second degree
16-3-655 Criminal sexual conduct with minors, except where evidence presented at the criminal proceeding and the court, after the conviction, makes a specific finding on the record that the conviction obtained for this offense resulted from consensual sexual conduct where the victim was younger than the actor, as contained in Section 16-3-655(3)
16-3-656 Assault with intent to commit criminal sexual conduct, First and Second degree
16-3-920 Conspiracy to commit kidnapping
16-3-930 Trafficking in persons
16-11-110(A) Arson, First degree
16-11-311 Burglary, First degree
16-11-330(A) Armed robbery
16-11-330(B) Attempted armed robbery
16-11-540 Damaging or destroying building, vehicle, or other property by means of explosive incendiary, death results
24-13-450 Taking of a hostage by an inmate
25-7-30 Giving information respecting national or state defense to foreign contacts during war
25-7-40 Gathering information for an enemy
43-35-85(F) Abuse or neglect of a vulnerable adult resulting in death
55-1-30(3) Unlawful removing or damaging of airport facility or equipment when death results
56-5-1030(B)(3) Interference with traffic-control devices or railroad signs or signals prohibited when death results from violation
58-17-4090 Obstruction of railroad, death results.
There is also a category of offenses called “serious offenses.” “Serious offenses” trigger the “three strikes” provision of the statute. What this means in simple terms is a conviction of two prior “serious” offenses means that upon conviction for the third “serious” offense or combination of “serious” or “most serious” offenses, the offender will be sentenced to life in prison without possibility of parole.
As an example, a person with one prior “most serious offense” on their record, would be subject to a life sentence upon conviction of a second “most serious offense” as in the Armed Robbery example above. On the other hand, if the first offense was simply a “serious” offense, a subsequent conviction for a “most serious offense” would not trigger the statue. However, upon conviction for a third offense whether “serious” or “most serious”, the person would be subject to a life sentence.
To change this around a bit, let’s say someone had one “most serious” conviction. Later they were charged and convicted with a “serious” offense. Section 17-25-45, would not be triggered. However, upon the third conviction, whether the third conviction was for a “serious” or “most serious” offense, the sentence could possibly be life in prison without parole.
“Serious offenses” are defined in section (C)(2) of the statute.
(a) any offense which is punishable by a maximum term of imprisonment for thirty years or more which is not referenced in subsection (C)(1);
(b) those felonies enumerated as follows:
16-3-220 Lynching, Second degree
16-3-210(C) Assault and battery by mob, Second degree
16-3-600(B) Assault and battery of a high and aggravated nature
16-3-810 Engaging child for sexual performance
16-9-220 Acceptance of bribes by officers
16-9-290 Accepting bribes for purpose of procuring public office
16-11-110(B) Arson, Second degree
16-11-312(B) Burglary, Second degree
16-11-380(B) Theft of a person using an automated teller machine
16-13-210(1) Embezzlement of public funds
16-13-230(B)(3) Breach of trust with fraudulent intent
16-13-240(1) Obtaining signature or property by false pretenses
38-55-540(3) Insurance fraud
44-53-370(e) Trafficking in controlled substances
44-53-375(C) Trafficking in ice, crank, or crack cocaine
44-53-445(B)(1)&(2) Distribute, sell, manufacture, or possess with intent to distribute controlled substances within proximity of school
56-5-2945 Causing death by operating vehicle while under influence of drugs or alcohol; and
(c) the offenses enumerated below:
16-1-40 Accessory before the fact for any of the offenses listed in subitems (a) and (b)
16-1-80 Attempt to commit any of the offenses listed in subitems (a) and (b)
43-35-85(E) Abuse or neglect of a vulnerable adult resulting in great bodily injury.
“Violent” Offenses in South Carolina
There is also a category of offenses in South Carolina known as “violent” offenses. While most violent offenses are also “serious” or “most serious” offenses, designation of a “violent “offense has nothing to do with the “three strikes” law in South Carolina. “Violent” offenses are defined in section 16-1-60 of the South Carolina code.
I hope this has given some information on what constitutes a “serious” or “most serious” offense in South Carolina and some knowledge of this so-called, “three strikes law”. Consult with your attorney extensively if you are charged with one of the offenses listed above. If you don’t have an attorney and are looking for a South Carolina Criminal Defense Lawyer experienced in handling complicated matters dealing with “serious” or “most serious” offenses, contact our office today.